14 December 2008

Following Daniel James’ letter to me last weekend, I wrote back to him. I was particularly anxious to know what had been said about the issue of just who is an “enemy”, as defined under the Official Secrets Act, because this is all important as to whether Daniel had been dealt with fairly by the Crown Prosecution Service.

From: Michael John SmithTo: Daniel JamesHMP Belmarsh

8 December 2008

Dear Daniel,

I got your letter on Saturday, and I sent a copy straight away to Giovanni. He said he has read your letter and will try to do what he can to help.

Giovanni has asked me to write to you about one matter in the trial. Tank Jowett did not keep him informed about what was going on, and so he would like you to tell him what happened about the “enemy” issues, that is how was it dealt with about whether Iran was considered an “enemy” of Britain?

This is important because Giovanni is trying to work on this point for your appeal. What did the judge say about Iran being an “enemy”? Did the judge mention anything about “enemy” during his Summing Up? Giovanni will be very interested in anything you can tell him about this subject and how it was put before the court.

If you can send me some information about this I can email it straight to Giovanni, because at the moment he is very busy in Iraq, and has been travelling back to Rome more or less every week. But he seems to answer my emails in an hour or two, so he will get your messages as soon as possible.

I read about what happened at your trial, and the conviction and sentence. I am very sorry that your trial ended with this result, and I know you must be feeling very bad about facing more time in prison.

You write about how the prosecution have twisted the evidence, when they knew it couldn’t be true. I tried to warn you that this is what would happen, because they did just the same sort of tricks during my trial. I got the impression that you didn’t quite believe me, and that they wouldn’t do this to you. These prosecution lawyers have no conscience, and they will do anything they have to do to get a conviction at trial - that is their job. Whether they really believed that you were spying for Iran would not have worried them, all they had to do was to take any piece of evidence and use it against you, to try to make the jury see you as “guilty”.

I can see that you are angry about being stitched up like this, but in truth this happens all the time in the British courts, and that was one of the reasons why I and my friends were trying to get you tried by a Court Martial, where you would have stood a better chance of being found “not guilty”.

Giovanni still seems optimistic that he will be able to win an appeal for you, and I hope that he is right. He has arguments that he thinks could work for you, and we will have to wait and see if it will be successful. Unfortunately your best chance was at the trial, when there was a chance the jury would acquit you. At an appeal you have to convince only judges, and they are harder to convince. Much less people win appeals, and so don’t get your hopes up too high, as I do not think it will be easy for you to win an appeal. It can take a year or more to get to appeal, but perhaps Giovanni can speed things up. If you lose an appeal your only hope is to go to the European Court of Human Rights and/or the Criminal Cases Review Commission, and neither of those options are fast - they can also take years, and you will probably be released from prison before a decision is made.

You must try and do everything you can to show that you did not receive a fair trial, but please do not think this will be easy. All through the 10 years I spent in prison I was writing to MPs, journalists and other people I thought might be able to help me. In the end I was only released when I reached the parole point - so all my hours of hard work never got me anywhere. The system is designed to make it difficult for the prisoner - you know how difficult it is to do anything while you are locked up, and you can’t easily make contact with the outside world.

I will do anything I can to help you, and will pass on any messages to Giovanni or others you want to contact. But I would suggest that you try to make use of your time in prison, and do some education or training so that it is not a complete waste of time. Many inmates spend hours watching TV or wasting time. Try to do something useful so you don’t just look back on this as wasted life. I studied courses in music and Spanish, and did a lot of things I didn’t have the time for in my previous life. You can’t get these years back, so make use of all the facilities you can in prison, and life will be as pleasant as it can be in the circumstances.

I have copied your letter and sent it to several journalists. I can’t be sure they will take up the issues you mention, but hopefully someone will be interested to follow up some of the points, and it could help to circulate the idea that you didn’t get a fair trial.

Take care of yourself my friend, and try to stay optimistic about the future. You are probably at the hardest point right now, but this time in prison will get easier if you focus on the good things in your life.

Best wishes,Mike Smith

Daniel James replied as below:

From: Daniel JamesHMP BelmarshTo: Michael John Smith

Friday 12 December 2008

Hi Mike

Thank you for your letter, I will reply as best as I can:There was no mention of enemy in court, however my QC asked General Richards about the good work that Iran was doing for Afghanistan. General Richards replied that he had met the Iranian Ambassador a few times and it was clear that Iran was doing a lot of good work for Afghanistan, then either the Prosecution or judge asked if Iran was helping the insurgents in the south of Afghanistan. He replied, it is not the Iranian Government but it is possible there were some groups within Iran, but there was no evidence to back it up.

About when you warned me about the Prosecution and their tricks. I did believe you, and now I believe you 200% and I can imagine what they did to you, and I believe you are innocent.

I did my best to be tried by the Army (Court Martial). I must have asked Richard Jefferies to sort it out for me about 100 times, he kept telling me that he had written to the Army and Prosecution but he was lying, but I don’t think he did anything.

I don’t waste my time in prison. I keep myself busy reading Iranian - Spanish language, gym. Also I work as a tea boy in house Block 3.

On Thursday I saw David Sleight and Simon his boss. David is leaving the firm on 23rd December, so I will be seeing Simon. Today I am going to speak to my QC Colin Nichols and David, they are going to appeal against the sentence. They think the sentence was manifestly excessive. I don’t know how long it will take.

Because the judge gave me 10 years, they will re-categorise me to B CAT for at least 6 months or one year, then C and D CAT. However, if I get the appeal and get a few years off, I end off in the D CAT because I have already done 2 years.

Please tell Stefano to give advice to Simon. I told Simon today that I regard di Stefano as one of the best lawyers, they already know what I think of him

Thank you for all your help and please send my regards to di Stefano and thank him for me.

Danny

I believe they may be moving me to another prison. I am not sure when. I have not been given a sentence plan yet, but I will keep you informed if anything changes.

Mike, go to Internet and look for the following:

House of Commons - Defence - minutes of evidence Tuesday 24th April 2007: General Richards

‘I had little interaction with the Iranians but I did meet the ambassador of Iran about three times and obviously I was well-versed in the amount of money and effort that Iran was putting into the west of the country but also into the Hazara population in particular, and it was clearly doing a lot of good work for Afghanistan.’

So, it can be seen that General Richards was not thinking about Iran as an “enemy” of the allied forces in Afghanistan, which clearly he should have been if Daniel was being tried for communicating information prejudicial to the interests of the UK to an “enemy”.

Mr Brian Jenkins MP also put a question to General Richards which demonstrated that Iran was not being considered with hostility as an “enemy” in Afghanistan: ‘How do we get them [the Americans] to understand that Iran in this area has a positive role to play, it has a commitment to stop the drugs going across its border, but 60% of it still goes across the border, and we have got to sit down and discuss these strategies as far as this is the only way we are going to get a regional plan to bring Afghanistan back to the civilised world as such …’.

Whether this is yet another misuse of the Official Secrets Act, or simply the Crown Prosecution Service (CPS) manipulating the facts to gain a wrongful conviction, only time will tell.

07 December 2008

Daniel James has sent me a letter, which was posted on 5 December 2008. It is all too obvious that he is complaining about just the sort of prosecution abuses that I warned him about back in June 2007, and which are contained in my letters to him that I have published elsewhere on my blog.

Despite all the bullsh*t the prosecution threw at Daniel, and the claims of serious misconduct and damage to the interests of the State, in effect he has not done anything so dreadful. As usual the jury were bullied by the prosecution into arriving at a guilty verdict, based on some very flimsy evidence.

So, looking at the wording of the Official Secrets Act, just who were the "enemy" that Daniel was convicted of communicating with? Was it Iran? Are we about to go to war against Iran? I don't think so. It is the hysterical way that the prosecution in such cases like to whip up hostility and bad feeling that this is really about. There's more than a whiff of racist attitudes in portraying Iran as Britain's "enemy". But in the confines of a British Crown Court everything is fair game to prosecution lawyers, most of whom have a chip on their shoulder from being brought up on a diet of public school abuse and faggoting to their superiors.

And just what was prejudicial to the interests of the State in this case? It seems there is general agreement that none of the evidence was prejudicial - but there's nothing new in that. This is yet another of the prosecution's mind games to create an illusion of danger and intrigue that will make the jury fearful to acquit the defendant. He might be a danger, or he might be thinking of passing over some important detail, or becoming some sort of hypothetical threat. That's what this is about, is it not? Not real espionage, but the possibility that Daniel might at some point become a danger, if he gained access to some secret or other?

So, what information in the supposed communication was useful to an "enemy". I would hazard to say that there was nothing useful whatsoever. Daniel has been condemned to a 10 year sentence for practically nothing. He is only there as a symbol, to warn others not to drift into espionage activity. The intelligence services know that it is now some years since the cases of Rafael Bravo and Ian Parr, and they now need a more recent case to hold up as an example. Daniel James is only the latest in a line of victims of the Official Secrets Act, and he is considered expendable for the greater good.

Coming back to Daniel's letter, I have copied his written pages so that you can see what he actually wrote (at the foot of this page). I have also copied the text of the letter, and edited it slightly to make it more readable, and this version follows on below:

From: Daniel JamesBelmarsh Prison

17 November 2008

Dear Mike,

I’d like to thank you for all your work/help. This is the first time that I have written to you, the reason why, if I ask my lawyer, he may not do it. Anything that I write to you, it has been said in the open court so you can give it to anyone you like. I believe that you know what had happened in court.

Count one: guilty: the emails. There is nothing in these emails which are confidential or prejudicial to the interest and safety of the State. Even the judge said that before the trial started. I thought the judge was going to dismiss the count one, but my QC did not press on it so it stayed. I asked my lawyer if I could appeal against it. He said there is no basis to appeal against it. I do not agree. Please ask Giovanni di Stefano.

Count two and three couldn’t reach the verdict. The judge has given one week to the prosecution to answer whether they want to retrial or drop the two charges (I am still waiting for a reply).

7 Predator photographs:Until two months ago, I was always accused of taking these photographs and I was always told by my unprofessional and incompetent previous lawyer that the CD in question was found in my house in Brighton. About two months ago we found out that these photographs were taken on 3rd May 2005. I was not in Afghanistan in 2005. I went to Afghanistan on 31st March 2006, in May 2005 I was in London studying the Afghan language.

Also, during the trial, we found out that the CD was not in my house in Brighton, it was in the room in Afghanistan which I shared with two other soldiers. We also found out the CD was not on my shelves or wardrobe, indeed it was on the shelf belonging to someone else, and that shelf was not in that room when I left Afghanistan on 11th Dec 06. Indeed, one of my other roommates called L.Cpl Crosson left Kabul on 16th Dec 2006, and mentioned in court that when he left the shelf in question was not there. It means that shelf was brought in the room after the 16th Dec 06.

The Police have found no trace of any item from this CD either in my laptop or home computer. Within this CD, there are many items such as the comedy Blackadder, singing and many other entertainments. During the trial we found out that the person who took these photographs was a British officer called Wing Commander RAF David Anthony Bush, who had permission to do it. He also said he had copied it for many other people, put it on the ISAF computer website for whoever wants it.

It is my belief that the Police knew about this from the beginning, but they just wanted to stitch me up. This is why in Nov 2007, a year after my arrest, the same Police officer who charged me (DS Andrew Pink) went to Afghanistan/Kandahar to try to connect me with these photographs when he knew perfectly it was not me. I was not even there.

The two confidential documents:When I returned to Kabul from my R&R in Nov 2006 (17th - 18th Nov) one of my salsa students called Lt.Col Sundquist (US Army) asked me if I could do her a favour with some translating. She told me to go to a unit within ISAF, in Class One Area - I can’t remember exactly the name, whether it was CJ3, CJ4 or CJ7 - and get my instructions. I went there, went upstairs, a big massive room, about 10-IS tables. As you enter the room, on your left-hand side, in the same direction as the staircase, there was another small office belonging to the Brigadier General (British).

In the big room, at one of the front desks, I asked someone about my instructions. He told me that a couple of documents needed to be translated and also they needed me to attend the meeting. He said go to the Linguistic Cell, they will send it to me there - I have been in that office before and saw an officer from my own regiment, rank, Major (?), short, age about 40 years (Princess of Wales Royal Regiment).

The same day or next day I went to the Linguistic Cell to collect the documents. In the Linguistic Cell they had just built a new office at the front, which was not there when I left for R&R on 31st October 06. One of the local interpreters was in this office called Secandar, he told me that Cpl Milad, who used to be deputy in the Linguistic Cell, had left Afghanistan at the end of October. Also, Major Fisher, who was supposed to be in charge, he is not really working there because he has other work. He said Rahimi now is in charge of the Linguistic Cell and he is his deputy. I asked him if there was any document for me to collect. He looked at the computer in the same office and said “yes there is”. I asked him to put it on my memory stick and I would come back later to translate it. He did, I went back either later that day, or next day. One of the local interpreters sat behind the computer (because I cannot type) and I translated to Dari. I asked him to print out the translated copy. He did.

Within days I went to the meeting, I cannot remember the exact date. The meeting took place in the Class One Area, in the building which is attached at the back of the Linguistic Cell. Within that building there are offices belonging to media photographers. As you enter this building, the meeting was either the 2nd or 3rd door on the left. Quite a big room, big wooden conference table, about 10 ISAF officers mainly British, two Afghani officers, Lt.Col Sundquist was there. It is possible that there was a PowerPoint regarding these documents. I had the translated copies and I gave it to the Afghani officers. I do recall that the discussion was about shortage of fuel.

In Jan 2007, one month after my arrest, the Police interviewed Lt.Col Sundquist. She said that apart from me organizing a ladies football match for her, she never had any dealings regarding work matters with me - what a lie (no statement was taken from her). In April 2008 the Police went and took a statement from her in the USA. In her statement she indicated that she had asked me twice to attend a meeting and do translating for her (confidential level). So I said we need her as a witness personally in court. She refused, even though we gave her about 8 months notice. She said she cannot leave her family for two days. One thing you need to know, Americans do a one year tour and they only get one R&R (holiday). I do remember when I used to speak to her in Kabul, and asked her “doesn’t your family mind that you are away so long from your family”. She replied “no, I do it all the time, they are used to it”. The reason she did not come to court was she knew that there is a big difference between being personally in court and a video link.

Some of the questions she was asked:Q: “When did you start doing salsa lessons with Cpl James?”A: “I don’t remember.”

Q: “When did you stop doing salsa with Cpl James?”A: “Jan or Feb 2007.”[What a lie. She knows perfectly well that Cpl James was arrested in Dec 2006.]

Lie, the winter does not start in October, and there was no snow. Indeed, in October 2006 it was so hot that we used to put on the air-conditioner. Snow arrived at the beginning of December. I went for my R&R on 31st October, and the temperature was 70-80°.

She said she remembered Cpl James came to that meeting, and did not have any folder with him, and he sat next to the Afghani officers.

If she has such a good memory that she remembered I entered the room without any paperwork, then it would be very easy for her to remember when was that meeting, not the exact date but the month - she would remember that James was arrested in December 2006 – and not to say that I was teaching her until February 2007.

She was also asked what were the names of other officers in that meeting. She replied “I can’t remember”. She lied in court. But there were many officers, mainly British, in that meeting especially the one who told me to translate those documents. If the officers hear about it, they may come forward and tell the truth. The documents in question were dated 16th and 18th November 2006 - it was in my memory stick. The Police evidence shows that the last time these documents were accessed was 20th November 2006, the time I translated them. In the same memory stick there were many items regarding my work.

In December 2006, while I was studying with a British naval officer regarding my Farsi exam, Lt Gary Wilson, he indicated in his statement that “James gave me his memory stick to put some previous Farsi exam on it”. Gary took it to his room, put the Farsi exam on it and brought it back to me (James). “When I returned James asked me if I could put it on his laptop computer, because he was unable to use a memory stick”.

If there was anything sinister about these 2 sitreps, why did I give the same memory stick to a navy commanding officer? He would have seen it straight away. It does not add up.

Last week I was told by my lawyer, because they found me guilty, I have to pay the legal cost of about £200,000 (two hundred thousand pounds). Not only do they put an innocent man in jail for 2 years, but also they want to take my money which I worked for all my life. This is how the British Government pays you back after serving the country for 20 years.

Thank you for your letters dated 7th, 8th October.

29th November 2008

Sorry Mike, I did not send you the letter dated 17th November because my lawyer said to me not to send any letter until after sentence.

Went to court on Friday 29th November, the prosecution dropped the count 2 and 3. The judge gave me 10 years sentence, even though my QC Colin Nichols told me before that he had looked at all cases, and in his opinion I will get 4 to 5 years. It is a bit different between 5 and 10. After that they told me that I have no ground to appeal against my conviction or sentence. I do not believe them. There is only one more thing that they need to do for me, that is regarding the legal cost which could be over £100,000, that they think I have to pay.Because they say the legal cost for my previous lawyer and current one could add up to £350,000.

It is my belief that the reason the judge gave me a high sentence is because this is a high profile case. On that day there were many police officers and press present.

I have filed an appeal application form myself, because my lawyer refused to do it.

Please contact Di Stefano and let him know.

I am going to write to you exactly what was in count one:One email 2nd November 2006. Only

‘Hello Mr Heydari hope you are well. I am in England now on holiday. This is my new email, I only open this when I am out of Afghanistan. This email is only for you. Mr Bahrami, the person that you ask me to give it to no one else knows about this email. I have got a computer for you the one you told me.

I have taken seven more pictures from those whose job is black. In the north Iran/Iraq border they are setting up a military camp. All the ground forces are there. Take care of that side. I don’t know the exact situation but it is possible that it is closed to a city called Alamara. You remember that I had said some one’s sister is in the parliament. I still don’t have the address, but someone who knows him/her for past 4 years and give him/her messages I have his/her full details. I have taken a copy of my own passport. About my friend who saw you about buying he is waiting for the defence minister to sign it and then he will come to you. And many thanks. Any other work that you may have I am at your service Esmail interpreter.’

Statement from officer M. Head of the intelligence at ISAF/NATO in Afghanistan in 2006.(M at B79) ‘The references contained in the text of the emails do not in themselves provide any great cause for concern in terms of the information they impart. They appear to be comments that may have been overheard and possibly misunderstood by the author who appears to have a rather exaggerated sense of his/her importance. I know of no damage to NATO - ISAF or UK operations that would be caused solely on account of the content of these emails. “Job is black” could possibly be a reference to Special Forces operation but doubt it. Alamara has been at some time a UK military base (it was in the south). It is not in the north Iran/Iraq border.’

Statement from political adviser to General Richards:‘what happens in Iraq is no concern of ISAF in Afghanistan.’

Mike, everything I have written in this letter it has been said in open court.

Please send a copy to di Stefano. Also write back to me.

Thank youDanny.

Today 2nd December: I have been told today that my lawyer is going to appeal against the sentence.